Pending
before the Court is Respondents' motion, pursuant to Rule
6(a) of the Rules Governing Section 2254 Cases, requesting
that the Court order Petitioner to disclose the notes taken
by Dr. Puente, along with copies of any memoranda in Dr.
Puente's file in this matter, and a list of persons with
whom Dr. Puente may have communicated that are not identified
in his report, correspondence, or notes. (Doc. 266.) The
matter has been fully briefed. (Docs. 272, 274.).

Motion
for Disclosure

This
Court has granted an evidentiary hearing to address
Petitioner's allegations of ineffective representation by
state post-conviction counsel as cause for the procedural
default of two claims of ineffective assistance of trial
counsel. At issue is whether trial counsel was ineffective in
failing to investigate Petitioner's social background and
present that information to mental health experts. The Court
has authorized the deposition of Petitioner's mental
health expert in these proceedings, Dr. Antonio Puente, which
has been scheduled for June 29, 2017. Petitioner states that
his counsel is not in possession of any of the requested
documents, and the only documents Dr. Puente indicates he
possesses that are responsive to Respondents' disclosure
request are notes from witness interviews he conducted.
Respondents assert that Dr. Puente's interview notes are
necessary to determine how the information obtained in
interviews of witnesses affected the development of his
opinions. Additionally, Respondents assert the interview
notes may contain relevant impeachment material. Petitioner
contends Respondents are not entitled to these interview
notes because they are protected as a form of a draft report
under Federal Rule of Civil Procedure, Rule 26(b)(4)(B).
Rule 26(b)(4)(B): Trial-Preparation Protection for Draft
Reports or Disclosures

A party
must disclose the identity and the written report of an
expert whose testimony may be used at trial. See
Fed.R.Civ.P. 26(a)(2)(A)-(B). Among other things, the report
must contain the expert's opinions and the facts or data
the expert considered in forming the opinions. Republic
of Ecuador v. Mackay, 742 F.3d 860, 865-66 (9th Cir.
2014); Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii). Exempt from this
requirement, however, are the “drafts of any report or
disclosure . . . regardless of the form in which the draft is
recorded.” Fed.R.Civ.P. 26(b)(4)(B). Petitioner asserts
this exemption protects Dr. Puente's interview notes, as
a form of a draft report, from discovery.

Petitioner
contends that the language added in the 2010 amendments to
Rule 26 to protect “any form of a draft report”
was intended to narrow the scope of expert discovery, and
that the rule never envisioned production of “every
single witness interview note taken by Dr. Puente.”
(Doc. 272 at 2) (citing Sara Lee Corp v. Kraft Foods
Inc., 273 F.R.D. 416, 418 (N.D. Ill. 2011)). It is an
oversimplification, however, to attempt to describe the 2010
amendments as simply “broadening” or
“narrowing” the scope of expert discovery without
further elucidation. As explained below, the 2010 amendments
to Rule 26 were more of a refinement-expanding the protection
afforded to discovery into attorney-expert communications,
but limiting claims of privilege into the discovery of
factual material considered by the expert-with the overall
intent to provide greater protection for the theories and
mental impressions of counsel.

The
definition of what constitutes a “draft report”
is not evident from the rule itself, and there is little
published authority on what is protected from disclosure.
See, e.g., In re National Hockey League
Players' Concussion Injury Litigation, 2017 WL
684444, at *1 (D. Minn. Feb. 21, 2017) (compiling cases
discussing poverty of relevant caselaw). Thus, the Court
finds it helpful, in establishing the contours of the rule,
to examine its historical context and purpose. In
Mackay, the Ninth Circuit Court of
Appeals-“substantially aided by the Advisory
Committee's notes”-reviewed and summarized the
historical context of Rule 26(b). 742 F.3d at 866. The Court
of Appeals explained that early amendments to the rule were
intended to allow an adverse party to prepare for effective
cross-examination and rebuttal by narrowing issues and
eliminating surprise, id. at 868 (citing Wright et
al., Federal Practice and Procedure § 2032 (3d
ed. 2013)), and were also meant to reject the decisions which
sought to bring expert information within the protections of
the work-product doctrine, id. at 868 (citing
Fed.R.Civ.P. 26(b)(4) advisory committee's notes (1970
amendment)). In 1993, provisions were added requiring most
testifying experts to prepare reports, and requiring
disclosure of “data or other information”
considered by the expert in forming the opinions.
Id. at 868-69. Because “other
information” was then interpreted broadly by many
courts to include disclosure of all information provided to
testifying experts, including communications between counsel
and expert witnesses as well as all draft reports, the rule
was again amended in 2010. Id. at 869. Disclosure
obligations were extended to any “facts or data
considered” by the expert in forming the opinions to be
expressed, and work-product protections were provided
“against discovery regarding draft expert disclosures
or reports.” Fed.R.Civ.P. 26(b)(2)(B)(ii)(2010);
Fed.R.Civ.P. 26 advisory committee's notes (2010
amendments). This was meant to “limit disclosure to
material of a factual nature by excluding theories or mental
impressions of counsel, ” while at the same time
broadly interpreting “facts or data” to
“require disclosure of any material considered by the
expert, from whatever source, that contains factual
ingredients.” Fed.R.Civ.P. 26 advisory committee's
notes (2010 amendments). Thus, the amendments to Rule
26(b)(4) “restore[] the core understanding that the
work-product doctrine solely protects the inner workings of
an attorney's mind.” In re Application of
Republic of Ecuador, 735 F.3d 1179, 1187 (10th Cir.
2013). Rule 26(b)(4)(B) protects draft reports because
“the drafting process ordinarily entails communications
between the expert and counsel” and disclosing draft
reports “is likely to include revelation of attorney
work product.” Wenk v. O'Rielly, 2014 WL
1121920, at *4 (S.D. Ohio Mar. 20, 2014).

When it
comes to applying the rule, there is little case law to help
the Court “distinguish between notes which are simply a
compilation of information for possible later use in a case,
and notes which truly are part of the draft of a final expert
report.” See Id. at *5. In the absence of a
“bright-line standard, ” courts attempting to
determine if material is protected as a draft report have
applied a fact-dependent inquiry. See, e.g., id.
(observing that in the absence of a bright-line standard, and
“since most cases will turn on their facts . . . this
appears to be a fact-dependent issue.”). In conducting
this inquiry, whether or not the documents at issue are
labeled “draft report” or “witness
interview notes” or something else entirely is
irrelevant. See Deangelis v. Corzine, 2016 WL 93862,
at *3 n.5 (S.D.N.Y. Jan. 7, 2016) (“It is the substance
of the document and the circumstances of its creation, not
its label, that dictate whether it is, in fact, a
draft.”). Additionally, whether the documents are a
draft of an entire report rather than a portion thereof is
also an irrelevant distinction. Id. at *4 (citing
In re Application of Republic of Ecuador, 280 F.R.D.
506, 512 (N.D. Cal. 2012)). Factors that may be relevant in
determining whether the documents are a draft report include
whether the documents were created for the purpose of being
included in in the final report, and whether they were
actually included in earlier versions of the report. See
e.g., Deangelis, 2016 WL 93862, at *3-4.

In
Deangelis, the court found that documents comprised
of a summary of events that had occurred at a previous trial
and a chart, both of which had been prepared by a
non-testifying consultant and provided to a testifying
expert, were protected under the Rule 26(b)(4)(B)
“draft report” exemption. Id. at *5. The
court considered it particularly relevant to the analysis
that the documents had in fact been created for use in the
expert's report, and that the expert anticipated that the
documents would form a part of the report he was drafting,
even though it may not have been incorporated into the final
report. Id. at *1, *5.

Applying
similar reasoning in Davita Healthcare Partners, Inc. v.
United States, the court found that Rule
26(b)(4)(B)'s work-product privilege protected
spreadsheets, graphs, presentations, and charts under Rule
26(b)(4)(B), “so long as the documents were prepared by
the testifying expert to be included in draft expert
reports.” 128 Fed.Cl. 584, 588, 592 (Fed. Cl. 2016).

Finally,
consistent with the purpose of the rule, the court in
United States v. Veolia Env't N. Am. Operations,
Inc., found that draft presentations that contain
“summaries and conclusions” reflecting
“counsel's collaborative interactions with expert
consultants” are protected as a form of “draft
report” under Rule 26(b)(4)(B). 2014 Wl 5511398, at *5
(D.Del. Oct 31, 2014).

With
these considerations in mind the Court turns to
Petitioner's contention that Dr. Puente's witness
interview notes are a “form” of the expert's
“draft report.” The burden of proving any
evidentiary privilege rests with the party asserting it.
Weil v. Investment/Indicators, Research and Management,
Inc., 647 F.2d 18, 25 (9th Cir. 1981). Petitioner
asserts that Dr. Puente's office has informed
Petitioner's counsel that the reason he takes witness
interview notes is for incorporation into the report, and as
such, Petitioner asserts they are properly shielded by Rule
26(b)(4)(B). The Court finds that Petitioner has not, at this
time, satisfied his burden of proving these notes are
privileged. It cannot be that “everything an expert
writes down, no matter when in the opinion-forming process
that occurs, and no matter what the reason” qualifies
as a “draft.” Wenk, 2014 WL 1121920, at
*6.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
Court has reviewed Dr. Puente&#39;s supplemental report,
focusing on the sections titled &ldquo;General History&rdquo;
and &ldquo;Collateral Information, &rdquo; in which he
conveys &ldquo;information&rdquo; about Petitioner&#39;s
family and social background. (Doc. 262, Attachment A at
3-5.) The Court concludes that at least some of the
information obtained from Dr. Puente&#39;s witness
interviews, and memorialized in his notes, was most likely
gathered by Dr. Puente for the purpose of inclusion in his
expert report. See Davita, 128 Fed.Cl. at 592. As
Respondents assert, however, in this sense, Dr. Puente&#39;s
contemporaneous notes are no different from raw data
generated during testing, and would thus be discoverable as a
means of providing the basis of Dr. Puente&#39;s opinion. The
Court tends to agree, especially in light of the rule&#39;s
historical context and purpose. Republic of Ecuador v.
Hinchee, 741 F.3d 1185, 1194-95 (11th Cir. 2013)
(explaining that the 2010 amendments to the rule do not
&ldquo;suggest the drafters&#39; intent to confer
work-product status on the notes of a testifying
expert&rdquo;). At a minimum, to the extent the notes are
mere records of the witnesses&#39; direct statements, and do
not incorporate Dr. Puente&#39;s analysis, opinions or
commentary on those statements, they would seem to be
unprotected from disclosure as &ldquo;mere recitation[s] of
facts and data.&rdquo; See Davita, 128 Fed.Cl. at
591 (distinguishing unprotected “facts and data”
as separate and distinct from interpretations of data that
reflect counsel's mental impressions and result from the
expert's and counsel's ...

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